7.20 DAMAGES
7.2001 In General.
When the law was simpler, damages for defamation were easier to determine but more difficult to assess: a guilty defendant had his tongue cut out. 4767 There are now various damages rules depending on the nature of the damages sought. Defamation law recognizes a unique panoply of damages: presumed, compensatory, and punitive.
7.2002 Presumed Damages. 4768
A. In General.
Plaintiffs who can satisfy certain requirements of defamation law may find themselves entitled to presumed damages—damages that are presumed to exist without proof of actual or pecuniary injury.
B. Availability.
Presumed damages are awardable for defamation per se if the plaintiff establishes the requisite legal fault of the defendant. 4769 Thus, both private and public-figure plaintiffs may recover presumed damages in defamation per se cases.
C. Categories of Defamation Per Se.
Again, the law characterizes certain categories of defamation as defamation per se:
· Words imputing the commission of a crime involving moral turpitude;
· Words imputing infection with a contagious disease;
· Words imputing unfitness to perform, or lack of integrity in the performance of, the duties of a job or office; and
· Words necessarily prejudicing a person in his or her profession or trade. 4770
D. Fault Requirement.
1. History.
The availability of presumed damages does not mean that a Virginia private plaintiff may recover damages without proving the defendant's fault. 4771 Although the United States Supreme Court has intimated that the United States Constitution permits a private plaintiff to recover under a strict liability theory for defamation not involving a matter of public concern, 4772 Virginia has declined to return to strict liability.
2. Public Plaintiffs.
Because public plaintiffs must establish constitutional malice to recover any compensatory damages, they must therefore establish constitutional malice to recover presumed damages for defamation per se.
3. Private Plaintiffs.
Private plaintiffs pleading and proving defamation per se deserve presumed damages under one of two standards depending on the defamation's substance. First, if the defamation does not involve "a matter of public concern," 4773 a private plaintiff proving defamation per se deserves presumed damages if he or she establishes the defendant's negligence by a preponderance of the evidence. 4774 Second, a private plaintiff establishing defamation per se on a "matter of public concern" must prove constitutional malice before deserving presumed damages. 4775
Only a few Virginia cases have dealt with the standard for determining whether an allegedly defamatory statement involves a "matter of public concern." In WJLA-TV v. Levin, 4776 the court implicitly confirmed that a television station's report about a doctor's practices (including an arguably unorthodox treatment used with women) involved "a matter of public concern." 4777 In contrast, the Virginia Supreme Court had earlier implicitly indicated that an employer's defamatory statements about a former employee's alleged efforts to alter a truck's speed "governor" did not involve "matters of public concern." 4778 The Eastern District of Virginia noted in one case that the plaintiff conceded that a television station's broadcast about the fraudulent sale of flood-damaged cars involved "a matter of public concern." 4779
E. Scope.
4780 From a 1930 Virginia decision, presumed damages reflect "damages as will fairly and adequately compensate [a defamation plaintiff] for the insult to him, including any pain and mortification and mental suffering inflicted upon him, and for any injury to his reputation as a man and citizen." 4781
The Virginia Supreme Court has been fairly generous in upholding the award of presumed damages even in the absence of any proof of specific harm. For instance, in Poulston v. Rock, 4782 the trial court reduced both compensatory and punitive damages awarded to the plaintiff based on the defendant's calling him a "liar" and "thief" in restaurants and to the plaintiff's employer. The trial court noted that the plaintiff had presented no proof of reputational harm and that his own witnesses testified that they did not believe the defendant's accusation. The plaintiff suffered no salary loss or physical or emotional injury.
The Virginia Supreme Court nevertheless reversed, criticizing the trial court for ignoring the "longstanding principle that, even in the absence of any evidence of pecuniary loss, the damages which the injured party is entitled to recover may be substantial." 4783 The court noted that people might have heard the defamatory statements in the restaurants and that the plaintiff's employer might mistreat the plaintiff in the future as the result of the defamation.
More recently, the Virginia Supreme Court explained that "the jury needed no proof of damages suffered by [the plaintiff] on which to predicate its compensatory award based upon the per se defamation negligently published by [the defendant]." 4784 Interestingly, a 1917 Virginia Supreme Court decision seemed to acknowledge that the defendant had the right to "attempt to rebut this presumption [of damages for defamation per se] by asking the question as to what actual injury the plaintiff had in fact sustained by the libel . . . in the diminution of damages." 4785 However, the Virginia Supreme Court has not addressed that issue since 1917.
A 2009 Eastern District of Virginia court, articulating its damage analysis after the plaintiff waived a jury trial, did not simply pick a number out of the air but instead analyzed the plaintiff's possible damages. The court rejected the plaintiff's attempt to analogize his damages to statutory damages under the Anti-Cybersquatting Consumer Protection Act. 4786 The court also noted that the plaintiff "elected not to present specific proof of the amount of damages he suffered . . . even though he was invited to do so by Order." 4787
F. Role of Court and Jury.
The court decides as a matter of law whether a statement constitutes defamation per se. The court also decides whether the statement involves a "matter of public concern." 4788 After the court makes these threshold determinations, the jury decides whether the plaintiff has established the requisite degree of fault along with the other elements, including amount of presumed damages.
7.2003 Compensatory Damages. 4789
A. In General.
Compensatory, or actual, damages include harm to reputation, psychological injury, and monetary loss "proximately caused" by the defamation. 4790
B. Speculative Nature.
Assessing compensatory damages in a defamation case may seem inevitably speculative. 4791 This is because of the difficulty in measuring reputational injury. How can one objectively determine the amount a plaintiff should recover for the worry of facing stares at the grocery store because of an unfavorable newspaper article or malicious gossip spread through the neighborhood?
Unless plaintiffs wish to hire a qualified polling or reputational injury expert, they may have to rely on witnesses who can testify that they thought less of the plaintiffs because of the defamatory statements. Those witnesses, however, may be hard to find. They may not want to testify in favor of the plaintiffs. And if the plaintiffs instead rely on "friendly" witnesses, those witnesses may...
